Americans with Disabilities Act

The EEOC announced a rule change that will more than double the maximum fine for violating Title VII, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA)  notice posting requirements. Under the new rule, which is projected to become effective the first week of July, employers will face a maximum penalty of $525 per violation — up from $210.

While most retailers undoubtedly know they must have notices, where the notices are posted matters. The regulations require that they be in a prominent and accessible place where notices to employees and applicants are customarily maintained. For retailers in tight spaces this might prove challenging.  To avoid being dinged, however, it will pay to double check that the notices are not properly displayed and relegated to a storage closet door or obscured by stacked boxes.

Our colleague Frank C. Morris, Jr., attorney at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the retail industry: “New Online Recruiting Accessibility Tool Could Help Forestall ADA Claims by Applicants With Disabilities.”

Following is an excerpt:

In recent years, employers have increasingly turned to web based recruiting technologies and online applications. For some potential job applicants, including individuals with disabilities, such as those who are blind or have low vision, online technologies for seeking positions can prove problematic. For example, some recruiting technologies and web-based job applications may not work for individuals with disabilities who use screen readers to access information on the web. The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) recently announced the launch of “TalentWorks.”

Read the full post here.

Joshua A. Stein
Joshua A. Stein

For businesses hoping to identify an avenue to quickly and definitively defeat the recent deluge of website accessibility claims brought by industrious plaintiff’s firms, advocacy groups, and government regulators in the initial stages of litigation, recent news out of the District of Massachusetts – rejecting technical/jurisdictional arguments raised by Harvard University and the Massachusetts Institute of Technology – provides the latest roadblock.

In National Association of the Deaf, et al., v. Harvard University, et al. (Case No. 3:15-cv-30023-MGM, Dist. Mass.) and National Association of the Deaf, et al., v. Massachusetts Institute of Technology (Case No. 3:15-cv-30024-MGM, Dist. Mass.), Plaintiffs brought claims on behalf of individuals who are deaf or hard-of-hearing, alleging that Harvard and MIT violated Section 504 of the Rehabilitation Act of 1973 and Title III of the Americans with Disabilities Act by failing to offer its online video content in a format accessible to individuals who are deaf or hard-of-hearing (e.g., by providing captioning).  Facing case law in the District of Massachusetts that already made arguing against the potential applicability of Title III to goods and services offered on websites more difficult (see Nat’l Assoc. of the Deaf v. Netflix, Inc. (D. Mass. June 19, 2012)), both Harvard and MIT made motions to dismiss and/or stay the actions pending the U.S. Department of Justice’s eventual promulgation of website accessibility regulations governing places of public accommodation under Title III (currently expected in 2018) by asserting the primary jurisdiction doctrine.  DOJ submitted Statements of Interest in both cases opposing Harvard and MIT’s motions, arguing that the courts are presently capable of adjudicating Plaintiffs’ claims based on the existing state of the law and any delay pending the release of its regulations would unduly prejudice the Plaintiffs.

While it will not become a final order until adopted by U.S. District Court Judge Mastrioanni, in an extensive and thorough decision, Magistrate Judge Robertson, denied both Harvard and MIT’s motions in their entirety.  The decisions hold, among other things, that these were not appropriate matters to invoke the primary jurisdiction doctrine because the existing law provides the necessary legal framework for the Court to appropriately adjudicate whether or not Section 504 and Title III were violated by Harvard and MIT’s failure to provide captioning of its online video content.  The Court explained that it did not need to await DOJ’s issuance of final regulations because, if necessary, it had other resources available through which to educate itself about any technical issues involved in the case.  Moreover, as the analysis involved in accessibility cases must be specifically tailored to the entity and situation in question, the Court was not concerned about the potential impact these decisions might have on any broader issues addressed by DOJ’s regulations.  Finally, noting that DOJ’s Title III regulations will not even be in final form if delivered as planned in 2018, the Court expressed concern about the amount of time that would elapse for Plaintiffs if it was concluded that the defendants were violating the law.  This decision comes on the heels of the U.S. District Court of the Western District of Pennsylvania’s decision this past November denying a similar motion to dismiss made by Huntington National Bank in defending against a claim brought by the law firm Carlson Lynch Sweet & Kilpea on behalf of Michelle Sipe.  (Sipe v. Huntington National Bank, Case No. 2:15-cv-01083-AJS (W.D.Pa. 2015))  While that decision came without any discussion, the papers filed by both parties relied heavily upon those submitted by the parties in the Harvard and MIT decisions.

These recent decisions reveal a reluctance among the courts to dismiss website accessibility actions on technical/jurisdictional grounds.  Taken along with the expanding number of jurisdictions who subscribe to legal theories accepting that Title III covers website accessibility (whether adopting a nexus theory or broadly interpreting the spirit and purpose of the ADA) and it is becoming increasingly clear that many businesses will have a difficult time ridding themselves of website accessibility claims in the early stages of litigation.  Of course, these decisions have been quick to note they do not foreclose a variety of potentially successful defenses that may be asserted later in the litigation – e.g., undue burden, fundamental alteration, and the provision of equivalent/alternative means of access.  While, to date, the existing website accessibility case law has not focused on when these defenses might prevail, with the recent proliferation of website accessibility demand letters and litigation, businesses should soon find themselves with greater guidance from the courts.  In the interim, the best way to guard against potential website accessibility claims continues to be to take prophylactic measures to address compliance before you receive a demand letter, complaint, or notice of investigation.

We will, of course, continue to monitor these ongoing developments and update you as appropriate.


Service DogThe United States Department of Justice recently released technical guidelines aimed at cur”tail”ing proliferating efforts purporting to expand the meaning of “service animal” under the Americans With Disabilities Act (“ADA”). Under the ADA, public accommodations (e.g. restaurants, hotels, retail establishments, theaters, and concert halls) must permit the use of service animals by disabled individuals. These technical guidelines take aim at increasing claims that a variety of animals (e.g. a pigs) are service animals because they provide emotional support or comfort to the disabled individual. As this technical guideline makes clear, a service animal must not only be a dog, but it must be working like one as well.

The technical guidelines explain that, under the ADA, a service animal is “a dog that has been individually trained to do work or perform tasks for an individual with a disability.” In addition, the task(s) performed by the dog “must be directly related to the person’s disability.” Applying these definitions, the technical guidelines make clear that dogs (or other animals) that provide comfort through their presence alone do not qualify as service animals under the ADA. To satisfy the requirements of the ADA, the dog must be trained to take a specific action when the disabled individual requires assistance. The technical guideline provides these examples:

  • A person with diabetes may have a dog that is trained to alert him/her when his blood sugar reaches high or low levels;
  • A person with epilepsy may have a dog that is trained to detect the onset of a seizure and then help the person remain safe during the seizure; and
  • A person who suffers anxiety attacks may have a dog that is trained to sense when an attack is about to happen and take a specific action to help avoid or lessen its impact.

Merely providing emotional support and comfort by presence alone is insufficient to qualify a dog as a service animal under the ADA.

The technical guidelines also provide clarification as to the proper inquiries that may be made of a patron seeking to utilize a service animal in a place of public accommodation. In situations where it is not obvious that the dog is a service animal, staff may ask the patron only two specific questions:

  1. Is the dog a service animal required because of a disability?
  2. What work or task has the dog been trained to perform?

Staff may not request supporting documentation for the dog, require the dog to demonstrate the task, or inquire about the nature of the patron’s disability.

Managers of restaurants, hotels, retail establishments and other public accommodations should review the guidelines provided by the Department of Justice in order to more fully understand their rights when presented with a patron claiming need to use a service animal.

On March 5, 2015, the United States Court of Appeals for the Ninth Circuit issued an opinion in Chapman v. Pier 1 Imports (U.S.) Inc., 2015 WL 925586 (9th Cir. Mar. 5, 2015) that provides retailers with useful insight into how to manage the issue of “temporary obstructions” to accessible routes under Title III of the Americans with Disabilities Act (“Title III”).

Title III’s overarching obligations that retailers provide individuals with disabilities with full and equal enjoyment of their goods and services and engage in ongoing barrier removal include the requirement to provide and maintain accessible routes (generally, a minimum of 36 inches in width) into the store, to merchandise, and to locations such as check-out and service counters, restrooms, fitting rooms, and other amenities.  Title III’s implementing regulations and related Technical Assistance Manuals clarify that isolated and temporary obstructions to the accessible route do not violate the ADA, if infrequent and promptly removed.

Here, Chapman alleged that Pier 1 violated Title III and related state accessibility laws, by, among other things, repeatedly obstructing its aisles with merchandise, furniture, display racks, and ladders.  Chapman encountered such obstructions on eleven separate visits to a Pier 1 store.  In upholding the district court’s finding of summary judgment for Chapman on the obstructed aisle issue, the Ninth Circuit rejected Pier 1’s argument that these allegations should be excused as mere temporary obstructions and thus, did not violate the law.

The Ninth Circuit’s reasoning suggests helpful guidance for retailers looking to avoid similar lawsuits:

  • Adopting policies governing the placement of merchandise to maintain accessible routes, and practices and procedures to help implement those policies (g., regular walks of the store with a tape measure) do not insulate a retailer from liability if, the policies, practices, and procedures are – as in Chapman – ineffective;
  • An obstruction is unlikely to be deemed temporary, if retailers place the onus upon the customer to request its removal;
  • An obstruction will not necessarily be deemed temporary just because it was created by another patron and not the retailer itself – the retailer has an obligation to maintain its accessible routes;
  • Even if individual instances of obstruction when viewed separately might be temporary, a volume of “temporary obstructions” can become sufficiently prevalent to constitute repeated and persistent failures that were not promptly remedied and, thus constitute a violation of Title III; and
  • True temporary obstructions – those that are isolated and transitory in nature – g., maintenance equipment being actively used to make repairs or items currently involved in re-stocking merchandise – remain subject to Title III’s exemption to the accessible route requirements.

For additional information please contact Joshua A. Stein.